Ginsburg: SCOTUS Has 'Ventured Into A Minefield' In Birth Control Ruling

Justice Ruth Bader Ginsburg tore into the Supreme Court's ruling on Monday against Obamacare's contraception mandate, saying the court has "ventured into a minefield" with an unprecedented decision that invites owners of many kinds of commercial enterprises to seek exceptions from laws they object to on religious grounds.

By a 5 to 4 vote, the Court held that the mandate violates the 1993 Religious Freedom Restoration Act, which says laws that burden a person's exercise of religion be narrowly tailored to meet a compelling governmental interest. Justice Samuel Alito, writing for the five Republican-appointed justices, said the birth control requirement cannot be imposed on "closely held" for-profit corporations.

"In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs," she wrote. "The Court's determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private."

Ginsburg, a Bill Clinton-appointed justice, linked to a list of large private companies -- which includes Cargill, Koch Industries and Dell -- which may also be eligible to opt out of the mandate under the Supreme Court's ruling.

She argued that the mandate is backed by a compelling governmental
interest and is backed by a "wealth of empirical evidence," writing that "the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children."

Ginsburg noted that the case, brought by the Christian owners of the retail chain Hobby Lobby, marks the first time the U.S. Supreme Court has exempted a for-profit corporation from a generally applicable law on religious grounds.

"The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities," she wrote. She concluded: "Indeed, approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the Establishment Clause was designed to preclude.' The Court, I fear has ventured into a minefield."

Ginsburg's dissent was joined in full by Justice Sonia Sotomayor and for the most part by Justices Stephen Breyer and Elena Kagan.

About The Author

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.